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Monthly Archives: May, 2015

The Government Can’t Take Your Copyright

A little known and infrequently invoked feature of the U.S. Copyright Law is its prohibition against government-mandated copyright transfer from an individual author. 17 U.S.C. § 201(e) reads:

When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11 [the bankruptcy code].

Even a court cannot order a transfer. In a recent case in the District of Massachusetts, the court held that the effect of § 201(e) was to void a court ordered transfer from the defendant to the plaintiff.

Monthly Archives: May, 2015

Clickwraps and Browsewraps: What’s the Difference?

Clickwrap and browsewrap agreements are documents typically used by website owners to mandate the terms on which users may access their websites. The difference between the two is the manner in which the user agrees to the terms. Clickwrap agreements require an overt act of consent by the user. Typically, the user must click a button to signify acceptance. Browsewrap agreements do not require any overt consent. Rather, the website owner posts the terms of use on the site and asks that users not access the site unless they agree to those terms.

Courts treat the two differently because of the difference in the manner in which the user accepts the terms. Clickwrap agreements are generally enforceable because the user’s click is an affirmative act indicating acceptance. The enforceability of browsewrap agreements depends on the prominence of the browsewrap terms. The more prominently the terms are displayed, the more likely a court will rule that users are bound because they must have seen the terms (or deliberately ignored them) and therefore a user’s continued use of the site demonstrates consent to the terms.

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